Agility in Argument: Who is the Audience?

For litigators, persuasion is the name of the game.  We’re constantly striving to persuade judges, juries, other lawyers, opponents, and sometimes clients of the correctness of our factual and legal analysis.  In doing so we often convince ourselves – not just that our arguments are substantively correct, but also that we’re making them in the best possible way.

This can be problematic.  A large body of social science research confirms something obvious but easily overlooked as we go about trying cases and drafting motions:  human beings are hard-wired to view the world in a multiplicity of different ways.  For example, a recent study (Gleichgerrcht and Young, 2013) found that people lacking a particular type of empathy (specifically empathic concern – that is, feelings of warmth and compassion toward those in distress) are more likely to resolve moral dilemmas in utilitarian fashion – for example, by expressing a willingness to harm one person in order to save five others.  Somewhat surprisingly, the study found that utilitarian moral judgment was not correlated with the lack of other types of empathy (including personal distress and the ability to take the perspective of others), or with demographic or cultural variables.

Lawyers are often portrayed as lacking empathy, but that hasn’t been my experience.  Good litigators combine rigorous analytical skills with compassion and a facility for taking different perspectives.  They don’t blindly follow the same comfortable approach in case after case, but consciously adjust their tactics – including the style and substance of their arguments – to suit the facts, the law and, not least, their audience.  They know that a technically sound utilitarian argument may not persuade judges or jurors with high empathic concern, and that an argument appealing to the heartstrings but wanting analytical rigor may not persuade judges or jurors with a more utilitarian bent.  And most importantly, they understand that we all tend to find ourselves pretty convincing.  Persuading others requires more thoughtful attention to the different ways in which we experience and understand the world.

— Duncan E. Manville